Opinion
NOT TO BE PUBLISHED
Appeal from the judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. PC042711, Melvin D. Sandvig, Judge.
Law Offices of Cyrus and Cyrus and Charles D. Sneathern for Plaintiff and Appellant.
Osman & Associates and Benjamin C. Alvarez for Defendant and Respondent.
GRIMES, J.
Plaintiff and appellant Darrell Birdsell injured his back attempting to offload prefabricated metal horse corral panels from a flatbed delivery trailer. Defendant and respondent W-W Capital Corporation, erroneously sued and served as W.W. Manufacturing, Inc., manufactured the panels. Plaintiff sued defendant on a single cause of action for strict product liability. Defendant successfully moved for summary judgment and plaintiff timely appealed. We reverse and remand for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL SUMMARY
The facts presented in the motion were undisputed. Pamela Baird (Baird) ordered several prefabricated metal horse corral panels (panels) that were to be constructed into stalls at her property. The panels were manufactured by defendant at its facility in Oklahoma. Defendant made arrangements with D&R Trucking Company (D&R) to deliver the panels to Baird’s ranch in Santa Clarita. Defendant loaded the panels onto D&R’s flatbed trailer, and the trailer was driven to D&R’s facility in Kansas. Sometime thereafter, Michael Lacore (Lacore), a driver for D&R, picked up the fully loaded trailer in Kansas, which contained not only the panels for Baird, but additional items for delivery to several other customers. He was required to check that the load was secure before transport.
Only fact number 11 was disputed by plaintiff, and it is not germane to our discussion.
Baird was out of town on the day set for delivery of the panels. She phoned plaintiff, and he told her that he would be working at his sister’s house, down the street from Baird, and he would keep an eye out for the trailer. Later in the day, plaintiff flagged down Lacore as he was driving up the road toward Baird’s ranch and told him the trailer was too big to take up to Baird’s property. Lacore insisted he had to make the delivery that day. Plaintiff told Lacore he could unload the panels at his sister’s house instead. At first, plaintiff thought he would be able to use a tractor to help unload the panels but then determined the bucket on the tractor would not fit properly.
Plaintiff and Lacore decided to manually unload each panel. Plaintiff did not personally check to make sure the panels or other items on the truck were secure before Lacore started to unstrap them. Plaintiff and Lacore were able to unload the first panel and lay it on a grassy area near the road. The accident occurred when the remaining panels fell on plaintiff as he and Lacore were attempting to remove the second panel. This action for personal injuries followed.
Defendant moved for summary judgment on the ground there was no defect in the panels that caused the accident and plaintiff assumed the risk of unloading the panels. Plaintiff opposed the motion on the merits but also advised the court, in his papers and at the hearing held June 15, 2009, that the parties had stipulated to plaintiff filing a first amended complaint for general negligence. Plaintiff conceded he could not prove product liability but asserted his right to amend the complaint to allege a negligence cause of action. The court denied plaintiff’s request to file the stipulation and the proposed first amended complaint, reasoning that plaintiff could not prove breach of duty, despite never having considered the proposed new facts in support of plaintiff’s negligence cause of action. At the conclusion of argument, the court granted defendant’s motion, and defendant gave notice of entry of judgment on June 25, 2009. Although the court denied leave to amend and ordered entry of judgment, the parties’ stipulation to amend and the first amended complaint were nonetheless filed on June 30, 2009. At oral argument, counsel confirmed there have been no further proceedings in the trial court, and they have treated the case as finally adjudicated pending this appeal.
DISCUSSION
1. Standard of Review.
Our review of an appeal from an order granting summary judgment is de novo. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) We independently review the entire record, except as to evidence to which objections were timely made and sustained, in the same manner as the trial court. (Ibid., see also Todd v. Dow (1993) 19 Cal.App.4th 253, 258.)
2. The Trial Court Erred in Denying Leave to Amend the Complaint.
Because plaintiff did not oppose the grant of summary adjudication of the product liability cause of action, it was not error for the trial court to dispose of that theory of liability. However, it was error for the court to deny plaintiff leave to amend to allege negligence. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258 [request for leave to amend made before or at hearing on summary judgment ordinarily should be “readily allowed”].) Plaintiff and defendant had executed a written stipulation, before the hearing on the summary judgment motion, to allow plaintiff to file a first amended complaint. The proposed amended pleading alleged a new theory of general negligence against defendant. Plaintiff advised the court of this and requested leave to amend at oral argument. The trial court had not received the stipulation as of the date of the hearing, but defendant acknowledged the parties had agreed to an amendment alleging negligence. The record is devoid of any facts that would indicate a negligence theory could not plausibly be stated as a matter of law against defendant. The amendment, therefore, should have been allowed, and the court abused its discretion in denying plaintiff leave to amend.
Further, it was error for the trial court to summarily adjudicate a hypothetical negligence theory that was not yet before the court by way of pleading, briefing, or argument. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381 [pleadings “delimit” the scope of issues on summary judgment]; Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663 [“Summary judgment cannot be granted on a ground not raised by the pleadings”].) In explaining the scope of its ruling, the trial court expressly stated that the motion was also being granted “on the negligence.” Without a pending negligence cause of action, the court was in no position to adjudicate whether or not there was a triable issue of fact as to any breach of duty, causation, or any defense related thereto.
Indeed, the record, undeveloped as it was as to negligence, already contained facts that might support a negligence theory against defendant. For instance, it was undisputed defendant engaged D&R to deliver the panels and also was responsible for loading the panels onto D&R’s truck. To the extent there was any negligence in how the panels were loaded onto the delivery truck that may have contributed to the accident, we can only speculate. A proper pleading, presumably additional discovery, and appropriate briefing would be required before a decision on that issue can be correctly made. Merely because Lacore, as D&R’s agent, was required to check that the load was “secure” for purposes of transport does not as a matter of law show defendant owed no duty of care to plaintiff or did not breach any such duty. A load secure for transport may not allow reasonably safe unloading once the truck arrives at its destination. The trial court should have rejected defendant’s invitation to rule on a hypothetical theory of liability in negligence on an undeveloped record, particularly since defendant had stipulated to a timely request to amend.
Moreover, the trial court erred in finding that plaintiff’s negligence claim was barred as a matter of law because he voluntarily assumed a known and obvious risk in helping to unload the panels. If plaintiff was negligent in willingly choosing to offload the heavy and potentially unstable panels, then perhaps defendant’s liability will be reduced on account of plaintiff’s comparative negligence. Primary assumption of the risk as an absolute defense is ordinarily limited to cases involving participation in inherently dangerous sports or cases involving the “‘firefighter’s rule.’” (Kindrich v. Long Beach Yacht Club (2008) 167 Cal.App.4th 1252, 1258-1261; Ford v. Polaris Industries, Inc. (2006) 139 Cal.App.4th 755.) Defendant did not present conclusive evidence supporting application of the doctrine of primary assumption of the risk, in this factual context, as a complete bar to plaintiff’s proposed negligence claim. (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82.)
DISPOSITION
The judgment is reversed. On remand, the trial court is directed to vacate its order for entry of judgment in favor of defendant. The trial court is further directed to enter a new order treating the motion for summary judgment as a motion for summary adjudication and entering summary adjudication in favor of defendant on the strict liability cause of action, granting plaintiff leave to proceed with his first amended complaint for negligence, granting defendant leave to file a responsive pleading; and to conduct further proceedings consistent with this opinion. Plaintiff is awarded costs on appeal.
We concur: BIGELOW, P. J. RUBIN, J.